Morris v Woodcreek Dev. Corp.
Annotate this CaseDecided on May 26, 2006
Supreme Court, Monroe County
Donald Morris, Plaintiffs, .
against
Woodcreek Development Corporation and KARTES REALTY, INC., Defendants.
2004/008560
Stephen V. Modica, Esq.
Modica & Associates
Attorneys for Plaintiff Donald Morris
Patrick B. Naylon, Esq.
Goldberg & Segalla
Attorneys for Defendants,
Woodcreek Development Corporation
and Kartes Realty, Inc.
Matthew A. Rosenbaum, J.
Plaintiff has brought a summary judgment motion on the issue of liability only pursuant to Labor Law §240. Plaintiff was hired by Defendants to do framing on houses. Plaintiff set an "A frame" ladder up against the outside wall of house to install a window. He was unable to extend legs of the ladder as there was a ditch beside the house. The [*2]ladder slid out from under him causing injury.
Labor Law 240 (1) provides in pertinent part: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
Defendant cites to Blake v. Neighborhood Hous. Servs. of NY City, Inc., 1 NY3d 280 (2003) But that case can be distinguished from the matter at hand. The Court recited the facts as follows: "In his deposition, however, plaintiff stated that the ladder was securely placed and not broken or defective. He also said there was no need to have anyone hold the ladder while he was using or ascending it."
In this matter the ladder was not securely placed or operated. Also there were no safety devices available and the ground around the ladder was uneven with a ditch under the window being worked on.
In the case of Ernest v. Pleasantville Union Free School Dist., 2006 NY Slip Op 2492 (2nd Dept. 2006) the Court found: "Where, as here, the plaintiff made a prima facie showing of liability on a motion for summary judgment, the burden shifted to the defendants, the owner of the building and the construction manager of the work performed, to present evidence sufficient to raise a triable issue of fact as to whether there was no statutory violation and whether the worker's own conduct was the sole proximate cause of the accident."
Defendant also cites to the case of Meade v. Rock-McGraw, Inc., 307 AD2d 156 (1st Dept., 2003) where the court refused to find liability on a summary judgment motion. In that case an "A frame" ladder was also involved, but there was specific testimony from Plaintiff's supervisor that another ladder could have been used safely.
Defendant argues that the testimony regarding the condition of the ladder was inconsistent as between Plaintiff and other workers. However, the claim is that the ladder was not properly placed and that the fall occurred because the ladder was not opened, not because the ladder was old. Further the ladder could not be opened due to a ditch running around the home. Defendant asserts that another ladder was available for use, but counsel's repetition of this fact without proof in evidentiary form that another ladder was available which could have been safely placed given the ditch, is not sufficient to defeat the motion.
Plaintiff has made a prima facie showing of liability that Defendants have been unable to rebut.
Partial summary judgment is appropriate and is granted.
Signed at Rochester, New York this 26th day of May, 2006.
MATTHEW A. ROSENBAUM
SUPREME COURT JUSTICE
[*3]
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